Written by Richard Wee, Wong Zi Ying & Jacob Wong
I will continue to fight for the human rights of female athletes, both on and off the track, until we can all run free the way we were born. #youcantstopus
– Caster Semenya, two-time Olympic 800m gold medalist
On 8 September 2020, Switzerland’s Federal Supreme Court dismissed Caster Semenya’s appeal and upheld the decision of the Court of Arbitration for Sport (CAS) which would exclude female runners with “differences of sexual development (DSD)” from competing with other women on the field.
In 2009, Semenya who was 18 at that time gained international attention for her speed when she raced in the world championships in Berlin. The governing body of track and field athletics subjected her to an invasive and humiliating “exam” to determine whether or not she should be allowed to race as a woman. The test revealed that she has higher levels of testosterone than usual female. She was assigned the female sex at birth, but suffered from Disorder of Sexual Development (DSD), and has some of the characteristics of both sexes.
In April 2011, the IAAF published its Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (the Hyperandrogenism Regulations 2011). The regulations aim to create a fairer way of splitting athletes into the male and female competition than its sex verification testing. These regulations set the maximum level of testosterone for a female competitor at 10 nmol/L, a level well above the level found in the average female. The Hyperandrogenism Regulations 2011 was later suspended in 2015 when Indian sprinter, Dutee Chand successfully challenged the regulations at CAS.
However, the suspension did not last long. IAAF cancelled its “Hyperandrogenism Regulations” and replaced them with the DSD Regulations establishing new requirements governing the eligibility of women with DSD for the female classification in race events from 400m to 1 mile (the “Restricted Events”) at international athletics competitions. The regulations took effect from November 2018. The DSD Regulations require athletes with 46 XY DSD with a natural testosterone level over 5 nmol/L, and who experience a “material androgenizing effect” from that enhanced testosterone level, to reduce their natural testosterone level to below 5 nmol/L, and to maintain that reduced level for a continuous period of at least six months to be eligible to compete in a Restricted Event. Such reduction can be achieved by the use of normal oral contraceptives.
As a result of such enforcement, Caster Semenya and Athletics South Africa (ASA) filed their requests for arbitration at the CAS against the DSD Regulations to be declared invalid and void in June 2018. By the decision of 2-1, the CAS panel dismissed the request and found that the DSD Regulations are discriminatory. Ironically, the panel thinks that such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events.
In the 163 pages of judgment, CAS also aware of the practical difficulties of complying with the Regulations, in particular, the possibility that female athletes may be unable to maintain a level of testosterone below 5 nmol/L through no fault of their own. It noted that implementation of the Regulations and experience with their operation may shed light on how they should be amended in the future, including possible changes to the races that are included in the category of restricted events.
Caster Semenya and ASA unsatisfied with the CAS decision brought an appeal to the Swiss Federal Tribunal. Despite efforts being made by Semenya, the Supreme Court with a panel of 5 federal judges had ruled against her and dismissed the appeal. The court is of the view that IAAF is taking the correct measures in ensuring the overall fairness of the competition in races of 400 meter and above.
Failing in the appeal also means that Semenya will not be able to compete in Tokyo’s Olympic 2020 if it is to be held. However, it was reported that Semenya had started her preparation for the unrestricted 200m race. She expressed her disappointment at the ruling and stated that IAAF is endangering the health of female runners with DSD. She also mentioned that she will further appeal the decision by both the CAS and the Supreme Court in Europe and South African’s courts.
The debate between the right to not be discriminated against and the need to ensure overall fairness of the game will surely not be rested upon this Supreme Court’s decision. At the end of the day, the final decision of this suit will set a precedent on how the officials will be making decisions on the imposition of DSD Regulations. We foresee this will be an on-going debate and will probably take many more cases of similar nature to reach a final conclusion.
Published on 15 September 2020